Citation NR: 9742607
Decision Date: 12/29/97 Archive Date: 01/02/98
DOCKET NO. 94-09 955 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The veteran served on active duty from March 1970 to April
1972 and had service in Vietnam from July 1971 to March 1972.
Service personnel records state that his principal duty
assignments in Vietnam were as a lineman for the HHC, 765th
Trans. Bn, (AM&s)(GS) United States Army Pacific-Republic of
Vietnam.
The Department of Veterans Affairs (VA) Regional Office (RO)
denied the benefits sought in May 1993, and the veteran
appealed. The VA Board of Veterans' Appeals (Board) remanded
the case to the RO in March 1996, after a hearing before the
undersigned traveling member of the Board in April 1994.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that service connection is warranted for
post-traumatic stress disorder (PTSD), as he has it, and it
is related to service. He entered the service at age 18 and
was subjected to stresses associated with Vietnam service.
He was under pressure that at times was life threatening. He
used drugs and alcohol to cope with it. He would not have
used alcohol or drugs if it were not for the stresses of
Vietnam. The case of Cohen v. Brown, 10 Vet.App. 128 (1997),
held that the requirement that a stressor be outside the
range of usual human experience has been eliminated for the
diagnosis of PTSD. With this in mind, it is asserted that
adequate stressors have been reported. Consideration of the
benefit of the doubt doctrine is requested. It is asserted,
moreover, that additional development in the form of stressor
development and a VA psychiatric examination should be
accomplished.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for service connection for
PTSD.
FINDINGS OF FACT
1. There is no service department evidence of record showing
that the veteran participated in combat or that he was
awarded decorations consistent therewith.
2. There is no credible evidence of record corroborating
alleged combat or noncombat stressors.
3. There is no clear diagnosis of PTSD.
4. Assuming, arguendo, a clear diagnosis of PTSD, there is
no credible medical evidence of a link between it and
in-service experiences.
CONCLUSION OF LAW
PTSD was not incurred or aggravated in wartime service. 38
U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.304 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Pertinent Law.
Under 38 U.S.C.A. § 5107(a), a person who submits a claim for
benefits under a law administered by the VA shall have the
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that the claim is well
grounded. Only when the claim is well grounded does the
Secretary have an obligation to assist such a claimant in
developing the facts pertinent to the claim. The Court of
Veterans Appeals has defined a well-grounded claim as "a
plausible claim, one which is meritorious on its own or
capable of substantiation. Such a claim need not be
conclusive but only possible to satisfy the initial burden"
of 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App.
78, 81 (1990). Where the determinative issue involves
medical causation or a medical diagnosis, competent medical
evidence to the effect that the claim is plausible or
possible is required. Grottveit v. Brown, 5 Vet.App. 91, at
93. Lay assertions of medical causation cannot constitute
evidence to render a claim well grounded pursuant to 38
U.S.C.A. § 5107(a). Grottveit, 5 Vet.App. at 93. A claimant
may not rely on his own or his representative's opinions as
to medical matters to meet the initial burden of establishing
a well grounded claim. Grottveit, 5 Vet.App. 93.
In order for a claim for service connection for PTSD to be
well grounded, there must be medical evidence establishing a
clear diagnosis of the condition, credible supporting
evidence that the claimed in-service stressor(s) actually
occurred, and a link, established by medical evidence,
between current symptomatology and the claimed in-service
stressor(s). If the claimed in-service stressor(s) is
related to combat, service department evidence that the
veteran engaged in combat or that he was awarded the Purple
Heart, Combat Infantryman Badge, or similar combat citation,
will be accepted, in the absence of evidence to the contrary,
as conclusive evidence of the claimed in-service stressor.
38 C.F.R. § 3.304(f); Zarycki v. Brown, 6 Vet.App. 91 (1993).
Due consideration is to be given to the places, types, and
circumstances of a veteran's service as shown by his service
record, the official history of each organization in which he
served, his medical records, and all pertinent medical and
lay evidence. 38 U.S.C.A. § 1154.
Service connection may not be granted for personality
disorders. 38 C.F.R. § 3.303(c).
Service connection may not be granted for disability which is
the result of the person’s own willful misconduct or abuse of
alcohol or drugs. 38 U.S.C.A. § 1110.
II. Evidence.
As noted above, the veteran's service personnel records show
Vietnam service from July 1971 to March 1972. No combat
decorations were awarded. His principal duty was reported to
be as a lineman while he was in Vietnam.
The veteran reported that he was in good health on service
discharge examination, and he was normal on psychiatric
evaluation at that time.
All post-service medical records of record are VA medical
records.
The first evidence of treatment for psychiatric disability is
in 1991. In July 1991, it was reported that the veteran had
experienced marijuana and alcohol abuse over a long period of
time, and that he had probably been addicted to cocaine. His
history since childhood, as reported by him, was recorded, as
were the symptoms he had reported. Thereafter, it was stated
that he satisfied criteria for PTSD. Part of the
satisfaction of criteria for PTSD was reported to be Vietnam
combat and being exposed to incoming grenade and small arms
fire in Vietnam. He was diagnosed with PTSD, crack cocaine
dependence in remission, alcohol dependence in remission, and
a possible personality disorder.
In August 1992, substance abuse in remission and personality
disorder were recognized. Alcohol abuse and cocaine
dependence in remission or partial remission, and a
personality disorder were recognized in September 1992 and
November 1992. A December 1992 psychiatric summary states
that the veteran was diagnosed as primarily chemically
dependent with secondary emotional features, and that
thereafter, chemical dependence and personality disorder were
diagnosed.
In December 1992, the veteran wrote that he had been shot at
several times in Vietnam and that he had seen several
soldiers get killed during those attacks. Also, there were
times that his base was shelled, and they would have to run
for cover. In March 1993, he reported that he had seen
Vietnamese with all different parts missing in 1971 and 1972,
when overlooking a hospital, and that that is when his
drinking and drug use began.
Later that month, in March 1993, the RO wrote him, advising
him to provide additional information, including the complete
descriptions of all specific traumatic incidents which he
felt produced PTSD, including the dates and places the
incidents occurred, the unit to which the veteran was
attached at the time, and the names of any friends who died.
A VA psychiatric examination was conducted in April 1993. At
that time, the veteran described his pre-service history, his
in-service experiences, including being exposed to small arms
fire and running into mines, and his post-service
experiences. He made no spontaneous complaints and could not
describe any extraordinary traumatic stressors relating to
service. The history predominantly concerned drug and
alcohol abuse. On mental status examination, the veteran's
reliability impressed the psychiatrist as extremely limited,
since there was no clear-cut spontaneous description of PTSD
criteria insofar as intrusive recollections, reliving
traumatic combat events, reexperiencing distressing exposures
to symbolic events, avoidance of recollections, or inability
to recall aspects of combat, or in defining specific trauma,
estrangement, or inhibition or inability to express affect.
No major symptoms of increased arousal related to military
experiences were elicited. On highly structured direct
questioning, the veteran vaguely referred to “sometimes I saw
a couple of GI’s killed and sometimes I ran for cover and
sometimes I have nightmares. I don’t like to be around
people, I get anxious, then” (sic). His claims folder was
reviewed, and its notations of observations of a pre-morbid
personality and of problems of difficulty adjusting
occupationally, socially, and educationally were reported.
It was noted that the veteran had reported having flashbacks,
but that they had not been specifically defined. The
diagnosis was PTSD by history only.
In a July 1993 letter, the veteran asserted that he does have
a nervous disorder and stress, and that it is related to
service. He had had guard duty across from a Vietnamese
hospital and had seen the Vietnamese with a lot of their
parts missing. He had developed a nervous disorder because
of this and because he could not tell the difference between
friendly Vietnam forces and the enemy, and so was afraid of
being shot by them. He had been put out on red alerts also.
As a result of all this, he had a nervous disorder, and had
medicated it with drugs and alcohol.
A hearing was held before the undersigned at the RO in April
1994. At that time, the veteran testified that guard duty
was stressful because it made him feel like a target.
Transcript (T.) at 3. Things that he had heard about Vietnam
were causing him stress also. T. 4. Therefore, he started
drinking alcohol and taking drugs. One of his guard duties
was overlooking a hospital, and so he saw many wounded
people. He kept his concerns inside, and they built up. T.
5. At one of his guard stations, he was not sure whether or
not he was the target of enemy fire, but he knew that he
could hear gunshots in the distance. He did not know of any
instance in which he specifically was the target of enemy
fire. T. 6. When asked if there were any specific events
from Vietnam that stuck out in his mind, the veteran
testified that it was mainly overlooking the hospital. T. 7.
From his guard station, he would see the wounded coming out
into the yard hobbling around on their crutches and
wheelchairs or whatever they had. T. 8. Additionally, there
were people right below his sleeping quarters who had been
injured or killed. They were messing with their grenade
launcher and it went off in their guard tower. T. 10. He
testified that he had used marijuana, opium, and heroin while
in Vietnam, and that he had resorted to that because of the
stress of being in combat. T. 13. When transporting radio
parts by helicopter, he might have been fired upon, but he
could not tell, because the helicopter was too loud, and it
was never hit. T. 15.
The Board remanded the veteran's case to the RO in March
1996, in part to help establish the occurrence of stressors
which had been alleged. In April 1996, the RO asked the
veteran to provide very specific details about stressors to
which he was exposed in service. He responded with a
September 1996 letter which is not specific as to details so
as to verify any alleged stressors. He was advised by the RO
in October 1996 that the evidence available for review was
inadequate to establish that a stressful experience occurred
in Vietnam.
III. Service connection claim analysis.
The Board concludes that the veteran's claim is well
grounded, as he initially had a diagnosis of PTSD related to
combat or noncombat in-service stressors, and his assertions
as to in-service stressors must be considered to be true for
the purposes of determining whether the claim is well
grounded. Cohen, 10 Vet.App. at 136-37.
Once it has been determined that a PTSD claim is well
grounded, it must be determined whether or not, on the
merits, there is a current, clear diagnosis of PTSD; credible
supporting evidence that the claimed in-service stressor(s)
actually occurred; and medical evidence of a causal nexus
between current symptomatology and the specific claimed
in-service stressor(s). 38 C.F.R. § 3.304(f); Moreau v.
Brown, 9 Vet.App. 389, 394-95 (1996).
A. Current, clear diagnosis.
In this case, in July 1991, it was originally felt that the
veteran had PTSD, as he had alleged. However, as time,
treatment, and evaluation progressed, PTSD was no longer
diagnosed, and it was instead reported that he suffered
primarily from chemical dependence as well as from a
personality disorder. The April 1993 VA psychiatric
examination was to diagnose or rule out PTSD, and it did not
diagnose it. It states, in essence, that there is no
objective evidence that the veteran has PTSD. The diagnosis,
since it is by the veteran's history, in essence is that the
veteran states that he has PTSD. He is incompetent to state
this, however, as he is a layperson. Espiritu, 2 Vet.App.
495; Grottveit, 5 Vet.App. 93. Additionally, history
contained in a medical report but unenhanced by any medical
expertise does not elevate it to the level of a medical
opinion. LeShore v. Brown, 8 Vet.App. 406 (1995).
Furthermore, the veteran’s written belief and testimony that
he has PTSD does not amount to a medical opinion that he has
it. Espiritu, 2 Vet.App. 495; Grottveit, 5 Vet.App. 93.
Moreover, if at least a relative equipoise of the evidence is
not present to show that he has it, the Board may not
conclude that he does, by using its own opinions. It must
confine its decision to the evidence of record and the weight
it produces. 38 U.S.C.A. §§ 5107, 7104; Gilbert; Colvin v.
Derwinski, 1 Vet.App. 171 (1991).
The veteran's testimony that he became nervous as a result of
in-service experiences, and that he used drugs and alcohol
because of them, does not permit the Board to conclude that
he has PTSD. He is a layperson, and so his opinion is not a
medical one which the Board can consider. Espiritu, 2
Vet.App. 495; Grottveit, 5 Vet.App. 93.
As to the presence of personality disorder and disability
resulting from alcohol and drug abuse, the Board notes that
service connection may not be granted for them under any
circumstances. 38 C.F.R. § 3.303(c); 38 U.S.C.A. § 1110.
B. In-service stressors.
In this case, service department records do not establish
that the veteran engaged in combat. Thus, the Board need not
accept the veteran's words as conclusive evidence of the
claimed in-service stressors which he claims are related to
combat. 38 C.F.R. § 3.304(f); Wood v. Derwinski, 1 Vet.App.
190 (1991); Zarycki v. Brown, 6 Vet.App. 91, 98-99 (1993).
The only diagnosis of record linking PTSD to service is the
July 1991 diagnosis of PTSD, which relied on the veteran's
uncorroborated history of Vietnam combat, exposure to
incoming grenade and small arms fire, and being under attack.
While this medical record relies on the veteran's history to
arrive at the diagnosis, it does not prove the occurrence of
the stressors that the veteran alleged he had experienced at
the time the diagnosis was made. This portion of the July
1991 medical record is merely his history, reported in a
medical record. It does not take on any more legal
significance merely by being reported in a medical record.
Wood, 1 Vet.App. 190; LeShore. Since there is no credible
supporting evidence of record that the veteran engaged in
combat or experienced noncombat stressors, his lay assertions
alone are not sufficient to establish the occurrence of the
alleged stressors. 38 C.F.R. § 3.304(f); Zarycki, 6 Vet.App.
98.
Therefore, while the assertions as to the above stressors
must be considered to be true for the purposes of determining
whether the claim is well grounded, see Cohen, 10 Vet.App. at
137, they need to be corroborated when the claim is being
considered on its merits. The holding in Cohen referred to
by the veteran in his contentions applies to questioning the
diagnosis of PTSD, when it has been clearly (unequivocally)
diagnosed, not as to questioning whether or not stressors
that were considered in arriving at the diagnosis of it
actually occurred. Cohen, at 139-140. The Board may
legitimately inquire into the latter. 38 C.F.R. § 3.304(f);
Cohen, 10 Vet.App. at 142.
The veteran has not provided information as to in-service
stressors which might be able to be corroborated by the U.S.
Army and Joint Services Environmental Support Group (now the
U.S. Armed Services Center for Research of Unit Records
(USASCRUR)), despite being asked to do so on more than one
occasion, and even a VA psychiatrist had questions as to his
reliability. Additionally, there have been no sworn
statements from others corroborating his assertions, either
as to combat or as to noncombat related stressors. As such,
it must be concluded that he has not met the burden of
proving his uncorroborated assertions that in-service
stressors which he relies upon to support the diagnosis of
PTSD actually occurred.
C. Medical nexus.
Last, the evidence is in such a state that it must be
concluded that it is not at least as likely as not that there
is a medical nexus between the once-diagnosed PTSD and
service. The only time the veteran was diagnosed with PTSD
was at first, when some asserted (and uncorroborated) combat
and/or noncombat in-service PTSD stressors were the basis for
the purported link to service. However, the diagnosis of
PTSD has not thereafter been continued. Instead, the
diagnoses became personality and alcohol and drug abuse
disorders consistently thereafter, and PTSD was not diagnosed
on VA psychiatric examination in April 1993. The VA
psychiatrist who performed the VA psychiatric examination in
April 1993 did not conclude that there was any link between
what had allegedly occurred in service and current
psychiatric disability. In fact, he did not feel that the
veteran had PTSD, so he could not have felt that there was a
medical nexus between in-service disease or injury and
current psychiatric disability. The examination was thorough
and considered the evidence which was contained in the claims
folder. Obviously, if it is felt that he does not have PTSD,
it is also felt that there is no link between it and service.
A medical nexus between the injury and the disability is
implicit in a diagnosis of PTSD. Cohen, 10 Vet.App. at 140-
42.
V. Related considerations.
The benefit of the doubt doctrine does not apply, as the
evidence preponderates against the material issues of current
diagnosis, in-service stressors, and medical nexus between
the two. 38 U.S.C.A. § 5107 (West 1991); Gilbert v.
Derwinski, 1 Vet.App. 49, 55 (1991).
Additionally, no further VA duties exist. The veteran has
not provided sufficient information for corroboration of his
alleged in-service stressors. Therefore, requesting
information from the USASCRUR would be of no benefit. Since
there is no credible evidence of in-service stressors, there
would be no credible basis of record to link any clear or
confirmed diagnosis of PTSD to service. Therefore, it is not
necessary to obtain another VA psychiatric examination. The
examination report itself could not be evidence as to the
in-service stressors. Wood.
ORDER
The claim for service connection for PTSD is denied.
D. C. SPICKLER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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